October 2008 Term

October 3, 2008 Supreme Court Update

Greetings, Court Fans, and welcome back to another Term of Supreme Court Updates!
Once again, it seems like we just left you for the summer, but the First Monday in October is almost upon us. As in past Terms, when the Court issues an order or opinion, we will send an e-mail summarizing the highlights as a way for readers to follow the Court with a minimal investment of time. Hopefully, you will continue to find these Updates to be a user-friendly and enjoyable way to keep up with the Court.
This Term, the Court has been active well in advance of First Monday. On Wednesday, the Court added to its docket by granting cert in ten new cases from its "long conference" before the start of the Term; we expect a lengthy order list denying cert in well over a thousand other cases soon. We'll list the new cases and their questions presented below. More notably, however, the Court took the rare step on Wednesday of modifying one of its rulings from last Term, its 5-4 opinion in Kennedy v. Louisiana (07-343) that the Eighth Amendment bars the death penalty for child rape, or indeed for any crime that does not involve the murder of the victim. In that case, Louisiana sought rehearing on the ground, as noted in a letter to the Court signed by 85 members of Congress, that the Uniform Code of Military Justice ("UCMJ") permits the death sentence for child rape and arguably undercuts the majority's finding that there was a national consensus against the death penalty in such circumstances. The Court denied rehearing, with only Justices Thomas and Alito voting in favor (rehearing would have taken five votes, obviously including at least one member of the original majority). The modifications, which do not alter the substance of the original opinion, note the existence of the UCMJ provision and incorporate a statement by Justice Kennedy, Kennedy v. Louisiana's author, that was joined by the other members of the majority (Justices Stevens, Souter, Ginsburg, and Breyer). Kennedy's statement noted that: (1) the military death penalty is rarely used and was last imposed in 1961; (2) the six individuals now subject to a death sentence under the UCMJ all killed their victims; (3) the law cited by Louisiana merely reclassified child rape under the UCMJ and arguably did not make the death penalty available for the crime; and (4) in any event, the availability of the death penalty in the military context did not indicate that it was constitutional in the civilian context. Justice Scalia, a Kennedy dissenter, issued his own statement joined by the Chief, in which he noted that he was voting against rehearing only because the views of the American people were ultimately irrelevant to the Court's decision, which came down to the Justices' own views on capital punishment (an outcome he found constitutionally unacceptable). He also noted, however, that the UCMJ provision "utterly destroy[ed]" the majority's claim to be discerning a national consensus as opposed to imposing its own views.
In other, cert-related news, some of you may have noticed a few news articles recently indicating that Justice Alito has dropped out of the "cert pool" – the joint enterprise by which the Justices pool their clerks for purposes of reviewing the thousands of cert petitions that inundate the Court, and which result in one clerk reviewing the case for (until now) eight of the Justices (Justice Stevens had been the lone holdout). The pool no doubt makes life easier for the Justices and their clerks, but it has also been criticized for concentrating too much control over the fate of a cert petition in a single clerk. Apparently, Alito found these criticisms warranted, as he now will have his clerks review all cert petitions. If you're a prospective clerkship applicant, keep that workload issue in mind . . . .
. . . . which brings us to the ten new grants, the vast majority of which cover criminal and related matters. On the civil side, the biggest grant probably came in Burlington Northern & Santa Fe Railway v. United States (07-1601) and Shell Oil Company v. United States (07-1607). In these consolidated cases, the Court will take on the question of government reimbursement from landowners for the costs of remediating hazardous waste sites under the Comprehensive, Environmental, Response, Compensation, and Liability Act ("CERCLA"). Because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In Burlington Northern, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation, and the parcel they owned required no remediation. The question presented is: "Whether the Ninth Circuit erred by reversing the district court's reasonable apportionment of responsibility under CERCLA, and by adopting a standard of review and proof requirements that depart from common law principles and conflict with decisions of other circuits." Shell's questions, though related, are slightly different: "(1) Whether liability for "arranging" for disposal of hazardous substances under [CERCLA], may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product. (2) Whether joint and several liability may be imposed upon several potentially responsible parties under [CERCLA] even where a district court finds an objectively reasonable basis for divisibility that would suffice at common law."
The other civil cert grants are a mixed bag. Hawaii v. Office of Hawaiian Affairs (07-1372) concerns Congress's Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, which acknowledged and apologized for the United States' role in that overthrow. The question presented is "whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land – 29 percent of the total land area of the State and almost all the land owned by the State – unless and until it reaches a political settlement with native Hawaiians about the status of that land."
Last up on the civil side, there's United States v. Navajo Nation (07-1410), which concerns the Indian Mineral Leasing Act of 1938, which authorizes Indian Tribes, with the approval of the Secretary of the Interior, to lease tribal lands for mining purposes. In a previous decision, the Court had upheld the Secretary's actions contrary to the tribe, but the court of appeals held on remand that the Secretary had breached duties linked to sources of law that had been briefed to the Court but not expressly discussed. The questions presented are: "(1) Whether the court of appeals' holding that the United States breached fiduciary duties in connection with the Navajo coal lease amendments is foreclosed by [the Court's prior decision]. (2) If [the prior decision] did not foreclose the question, whether the court of appeals properly held that the United States is liable as a mater of law to the Navajo Nation for up to $600 million for the Secretary's actions in connection with his approval of amendments to an Indian mineral lease based on several statutes that do not address royalty rates in tribal leases and common-law principles not embodied in a governing statute or regulation."
Of the criminal matters granted on Wednesday, the biggest might be Boyle v. United States (07-1309), which asks whether "proof an association-in-fact enterprise under the RICO statute requires at least some showing of an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages," an issue the petition says is "an exceptionally important question in the administration of federal justice, civil and criminal, that has spawned a three-way circuit split.
The other criminal cert petitions granted were a little less self-aggrandizing. They included:
Kansas v. Ventris (07-1356): "Whether a criminal defendant's ‘voluntary statement obtained in the absence of a knowing and voluntary waiver of the [Sixth Amendment] right to counsel,' Michigan v. Harvey, 494 U.S. 344, 354 (1990), is admissible for impeachment purposes—a question the Court expressly left open in Harvey and which has resulted in a deep and enduring split of authority in the Circuits and state courts of last resort?"
Montejo v. Louisiana (07-1529): "When an indigent defendant's right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to ‘accept' the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present?"
Puckett v. United States (07-9712): "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure."
Rivera v. Illinois (07-9995): The question presented has not been released yet in this in forma pauperis case, but reports indicate that it concerns whether the wrongful denial of a defendant's preemptory challenge requires automatic reversal of a conviction.
Corley v. United States (07-10441): "Whether 18 U.S.C. § 3501 – read together with Fed. R. Crim. P. Rule 5(a), McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957) – requires that a confession taken more than six hours after arrest and before presentment be suppressed if there was unreasonable or unnecessary delay in bringing the defendant before the magistrate judge."
Vermont v. Brillon (08-88): "(1) Whether continuances and delays caused solely by an indigent defendant's public defender can arise to a speedy trial right violation, and be charged against the State pursuant to the test in Barker v. Wingo, 407 U.S. 514 (1972), on the theory that public defenders are paid by the state (with a small "s"). (2) Whether the right to counsel, as established in Gideon v. Wainwright, 372 U.S. 335 (1963), should result in broader speedy trial rights to indigent defendants than defendants who are able to retain private counsel, such that only delays by private counsel get charged against the defendant under the Barker v. Wingo test."
That's certainly enough to get us started for the new Term! Oral arguments kick off next week; we'll be back with any orders of note before then. Thanks, as always, for reading!

Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400